Who Receives Notice of Probate?

Who Receives Notice of Probate?

Texas Probate Notice Requirements

Who receives notice when a will is filed for probate in Texas?

When a will is filed for probate in Texas, the county clerk posts a notice on the courthouse wall. This notice provides constructive notice to the world that the will has been filed, and individuals should take necessary steps to protect their interests if any time limits or statutes of limitation apply.

However, a different rule applies when someone is a named beneficiary in the will. In that case, the executor or administrator must provide actual notice to the beneficiary that the will has been filed for probate. There must be something more than constructive notice.

Named Beneficiary

In a recent Texas case, the contestant did not file his will contest within the two-year statute of limitations for contesting wills, and his contest was dismissed, leading to an appeal. 12-22-00256-CV. The contestant argued that he was a named beneficiary and should have received actual notice of the probate. However, the appeals court disagreed.

Decision

The will listed the contestant as the son of the testator but stated that the testator had “already give my son…a 1985 Chevrolet Corvette for his inheritance of my estate.” Despite the poor grammar, the court determined that the testator meant “already given my son” his inheritance, indicating that the son was not a beneficiary under the will since he did not receive anything under the will.

Things to Note

When someone passes, it is the responsibility of the heirs to understand what actions are required. In some cases, close relatives are unaware of an individual’s passing for several years following their death. If an individual is not listed as a named beneficiary in the will, they will not receive any personal notification, making it crucial for individuals to keep themselves informed.

Bill of Review

Bill of Review

Bills of Review in Texas

When a case doesn’t turn out the way you want in the trial court, you appeal to the court of appeals. But what can you do if you didn’t know about the case or didn’t learn of a trial setting until an appeal was too late? A bill of review allows you to bring the problem to court. Texas has two types of bills of review, an equitable bill of review and a statutory bill of review. The difference between the two was highlighted in a recent case.

In Gill v. Bordokas, 14-21-00356-CV. from the Houston 14th court of appeals, a man died intestate. One of his daughters filed an application to determine heirship where she alleged that he was not married and that she and her siblings were his only heirs. Within the time allowed, a woman filed a motion for new trial claiming that she was the common-law wife of the man. The woman did not request a hearing and the motion for new trial was eventually overruled by operation of law. Seventeen months later, she filed a statutory bill of review asking the court to overturn its order on heirship. The judge denied the bill noting that she did not pursue her motion for new trial when she could have. The alleged common-law wife appealed.

Equitable Bill of Review

The appeals court first discussed the court’s holding that the woman was not diligent. It listed the requirements for an equitable bill of review which requires diligence.

To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s inability to make the claim or defense was unmixed with any fault or negligence on the petitioner’s own part...When cases involving res judicata have arisen in the context of an equitable bill of review, there is normally a failure by the petitioner to satisfy one of these three elements.

However, the court stated that the alleged common-law wife filed a statutory bill of review, not an equitable one.

Statutory Bill of Review

But this case involves a statutory bill of review, which Gill sought under Section 55.251 of the Texas Estates Code. That statute provides that “an interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” See Tex. Est. Code § 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a matter or proceeding relating to a decedent’s estate,” which includes a determination of heirship). By its plain language, this statute authorizes a bill of review in a probate proceeding merely upon “a showing of error,” without the other elements required by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain this statutory bill of review even if the petitioner did not exercise the amount of diligence that would be demanded in the context of an equitable bill of review.

There is still a two-year statute of limitation on filing a statutory bill of review, but you don’t have to show that you were diligent.

UPDATE: In October 2023, the El Paso court of appeals found that a bill of review was the proper way to question an order admitting a will to probate as a muniment of title. 08-23-00019-CV.

Find Out Who is an Interested Party for Probate Purposes?

Find Out Who is an Interested Party for Probate Purposes?

The Texas Probate Code defines “interested persons,” in relevant part, to be: children, heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered . . .” In order to contest a will, you must be an “interested party.”

The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will. That means you must have a financial interest. An interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient. For instance, if you are a neighbor and you see that an undeserving child seems to be ending up with all of the property of their parents or grandparents, there’s nothing that you can do because your interest is not pecuniary. It is just altruistic. The only thing that you can do is to notify an interested party of your concerns. If they are not interested in contesting the will, there’s nothing else for you to do.

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We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

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Are Arbitration Provisions of a Will Enforceable?

I have written previously that arbitration clauses in trust are enforceable against the beneficiaries. Normally, arbitration clauses are not enforceable against someone unless they agreed to be bound by arbitration. In the trust context, the Supreme Court has held that if a trust contains an arbitration clause and you receive benefits from the trust, you are agreeing to the arbitration clause. This is called direct-benefits estoppel. I said in that article that the same rule would probably apply to an arbitration clause in a will. Well, there is a case now involving an arbitration clause in a will.

In the will case, the Testator’s will contained a provision requiring arbitration of all disputes. 14-18-00003-CV. The Successor Administrator sued the Former Executor for several alleged breaches of fiduciary duty. Former Executor moved to compel arbitration. The trial court denied the motion and Former Executor appealed.

The appeals court also denied arbitration. They said that direct-benefits estoppel did not apply because the Former Executor did not receive benefits. The Former Executor claimed that the fees that the he received were benefits under the will so the arbitration clause required arbitration. The court explained that Successor Administrator’s claims are not based on allegations that Former Executor violated the terms of the will. Instead, the breach of fiduciary duty claims against Former Executor were derived from statutes and common law, irrespective of the will itself. In addition, Successor Administrator’s entitlement to fees is based on Texas Estates Code § 352.051, not the will.

So, the implication is that arbitration clauses in wills are enforceable under the right circumstances.

Note: A 2019 case denied an interlocutory appeal of an order to arbitrate. A party sued a trust company for inappropriately distributing funds. The trust company demanded arbitration which the trial court ordered. The party that did no want arbitration attempted an interlocutory appeal. The appeals court denied the appeal saying that only orders denying arbitration are subject to interlocutory appeals, not orders granting arbitration.  11-19-00017-CV.

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